Justices Alito, Gorsuch, and Kavanaugh all wrote dissents from tonight’s 5–4 decision turning away a church’s challenge to Nevada’s COVID restrictions, an unusual move in the denial of an emergency application. They’re mad. Here’s a snippet of Kavanaugh’s. https://www.supremecourt.gov/opinions/19pdf/19a1070_08l1.pdf#page=12%23page=13

These four conservative justices accuse the Nevada governor of exploiting a public health crisis to discriminate against religion, substituting their own hypotheses of COVID transmission for the state’s scientists’. It’s not at all surprising Roberts wouldn’t go along with it.

Read @imillhiser siding with Alito for the first time ... ever?! https://www.vox.com/2020/7/25/21338216/supreme-court-churches-pandemic-covid-samuel-alito-brett-kavanaugh-calvary-chapel

I still think Alito is wrong, and here’s why.

The closest secular analogue to a house of worship, in terms of COVID transmission risk, is a concert or live entertainment.

Nevada has BANNED spectators from concerts and live events. But it does allow up to 50 people in a church.

Under Nevada, then, houses of worship are given more leniency than comparable secular businesses.

Sidestepping this fact, Alito fixates on casinos, which are allowed to host more people at once than a church.

This disparate treatment is more defensible than Alito suggests.

Nevada’s casinos are subject to stringent regulations that mandate social distancing, mask use at table games, etc. And state officials are enforcing these rules in person every day.

But Nevada cannot send officials to police churchgoers’ conduct in every house of worship.

I don’t think anybody actually wants Nevada to flood its religious establishments with state officials who compel worshippers to comply with public health protocols. But that’s the only way casinos and houses of worship would truly be comparable for the purposes of this analysis.

Is Nevada also desperate to reopen its casinos to collect tax revenue so it can fund, among other things, its public health programs? Maybe. Should it be more concerned about helping churches resume normal operation? Maybe. But these aren’t really constitutional questions IMO.

The question is whether it’s “indisputably clear” that Nevada’s restrictions illicitly discriminate on the basis of religion or speech. I think the answer is no, even if the claim is sympathetic. Do we really want courts making these public health distinctions in a pandemic?

But a state’s power to restrict liberties during a pandemic is not limitless.

Consider a mayor who allows 100 people to gather in an auditorium to hear a social justice lecture, but forbids 100 people from gathering in a church for prayer.

THAT is obviously unconstitutional.